In a Legal Update published prior to the election, I emphasized the importance of the upcoming judicial races in North Carolina and urged voters to “choose wisely.” Judging by the results, I think they did.
While the final outcome of the race for Chief Justice of the North Carolina Supreme Court isn’t official yet, it appears that the Republican candidates won all three open seats on the Supreme Court and all five open seats on the Court of Appeals as well. Even in a year in which Republicans did unexpectedly well statewide, that is a stunning result. It suggests voters were paying particularly close attention to the judicial contests this year, and that suggestion is corroborated by the fact that, compared with past years, an unusually high percentage of voters took the time to vote for judicial candidates this time around.
As I explained in my previous discussion of the judicial races, thanks to the progressive “living document” judicial doctrine adopted in the second half of the 20th century, our Supreme Court now has the power to uphold facially unconstitutional laws if a majority of the justices approve of them on policy grounds, to strike down facially constitutional laws if a majority of the justices disapprove of them on policy grounds, and to change the meaning of laws—and of the state Constitution—in order to advance the majority’s policy preferences.
As a result, a four-member majority of NC Supreme Court justices can wield more power over the law in North Carolina than the General Assembly and Governor combined. Indeed, such a majority can wield more power over the law in North Carolina than the entire voting public that ratified our Constitution and each of its amendments.
As I also noted, in that previous discussion:
While the N.C. Supreme Court can wield super-legislative powers, that doesn’t mean it has to do so. Over the years many members of the Court have renounced such powers and limited themselves to their constitutionally permissible role of applying state law and the state constitution as they are written. And even justices who have not adopted textualism and originalism as their guiding judicial principles will often resist the urge to put their policy preferences and/or their party’s interests first, and will, instead, uphold the written law.
Nevertheless, as long as living-document theory remains a viable judicial philosophy, the temptation to put policy preference before the letter of the law will always be there. Moreover, while I didn’t mention it in my previous piece because I didn’t want to appear to be trying to influence voters’ choices, Democrats are especially likely to give in to that temptation because, for many decades, the Democratic Party has been the party of progressivism in general and of the living-document approach to legal interpretation in particular.
Even without my mentioning it, the voters seem to have figured that out for themselves. Thanks to their thoughtful choices, what had been a 6 to 1 Democratic majority on the Supreme Court will now be a much more balanced 4 to 3.
The fact that the court will be more evenly balanced in terms of party affiliation, ideological commitments, and judicial philosophy will make it much harder for any of its members to impose their policy preferences from the bench, but that is not the only reason the election results will make such rulings less likely. The fact that Republicans swept all the Court of Appeals races and are on the brink of sweeping all the Supreme Court races won’t be lost on the Democratic judges and justices who weren’t up for reelection this year. They will realize not only that North Carolina’s voters are paying more attention to judicial races than they used to do, but also that those voters don’t like what they’ve seen from Democratic judges and justices in recent years. Even if they are tempted to do so, therefore, that realization will make them think twice before putting policy preferences or party loyalty before of the letter of the law.
I’ll finish with a final thought that’s inspired by this year’s judicial races but actually applies to the election as a whole. It’s been more than four weeks since election day, and we still don’t know for sure who will be the next Chief Justice of the North Carolina Supreme Court. We still don’t know for sure who will be the next President either. We don’t know either of those things because, through a relentless and reckless campaign of litigation, the Democrats succeeded in undermining the protections against fraud and ballot harvesting that were put in place by bipartisan majorities at the state legislature back in June. They did the same sort of thing all over the country this year, and in North Carolina and throughout the nation, we are now seeing the predictable and extremely undesirable result—a loss of public confidence in the integrity of our elections.
The Democrats who brought this on the country should be ashamed. If they care at all about the future of our democratic institutions, they must change their approach and begin to work with Republicans in good faith to enact and abide by voting rules that will both ensure, and be seen to ensure, election integrity.
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